The Arizona Supreme Court issued a troubling decision this week, ruling in favor of a wedding studio’s claims that its religious beliefs entitled it to disregard a civil-rights ordinance mandating equal treatment of Americans regardless of their sexual orientation.
Phoenix, like many other cities and states, has enacted a public-accommodation ordinance preventing businesses from refusing to serve customers based on (among other things) their sexual orientation. Public-accommodation laws have played a pivotal role in key civil-rights cases such as Heart of Atlanta Motel, Inc. v. United States, which involved a segregated hotel in 1960s-era Georgia. In that case, the U.S. Supreme Court explained that such laws vindicate “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”
In the Arizona case, the studio’s owners sued Phoenix, arguing that, because they oppose marriage equality for religious reasons, their free-speech rights under the Arizona Constitution and free-exercise rights under Arizona’s Free Exercise of Religion Act (“FERA”) allow them to refuse to produce wedding invitations for same-sex couples. In Brush & Nib Studio, LC v. City of Phoenix, a narrow majority of the Arizona Supreme Court accepted these dubious claims.
The Brush & Nib decision improperly applies to routine commercial transactions the constitutional protections granted to expressive speech. The court ultimately considered the act of “writing the names of two men or two women (even when the names could refer to either a male or female)” on an invitation as being equivalent to government-compelled “pure speech” that warranted “strict scrutiny” by the court. Applying a “strict scrutiny” standard of review, the majority concluded that the city’s interest in the ordinance did not justify the burden placed on religious objectors.
This decision distorts the meaning of constitutionally protected speech and devalues the government’s interest in combating invidious discrimination. Likewise, Arizona’s FERA statute also requires courts to balance the government’s interest in a regulation against the burden placed on a plaintiff’s exercise of their religion. Again, the majority undervalued the state’s compelling interest in preventing discrimination against minorities. Instead, it prioritized the perceived burden that drafting invitations for same-sex couples would place on the owners’ exercise of their religion.
The majority’s decision is wrong on both counts. As Justice W. Scott Bales persuasively argued in his dissent, our “constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs.” This is precisely because the state’s interest in combating discrimination is compelling, overriding even a sincere belief that one’s faith “requires” discrimination.
Moreover, the U.S. Constitution’s First Amendment mandates the separation of religion and government and, in so doing, limits what Arizona law may allow. It requires that special accommodations for religious practices be narrowly drawn so that they do not unreasonably interfere with the rights of third parties – like the right to enter a place of business without facing the indignity of being denied service based on one’s sexual orientation.
Unfortunately, Brush & Nib is just the latest in a nationwide wave of litigation involving wedding vendors who oppose serving same-sex couples for religious reasons. The U.S. Supreme Court issued a narrower and more limited opinion in 2018 in favor of a baker who refused to bake a wedding cake for a same-sex wedding. Just last month, in Telescope Media Group v. Lucero, the 8th U.S. Circuit Court of Appeals ruled more broadly in favor of a videographer challenging the Minnesota Human Rights Act.
Neither the studio owners in Brush & Nib nor the videographer in Telescope had actually been approached by any prospective same-sex customers before filing suit. Instead, this litigation campaign has been engineered from the ground up by legal groups on the Religious Right like Alliance Defending Freedom, counsel in both cases.
Their campaign may have far-reaching results. If the production of a wedding invitation counts as expressive speech by the calligrapher, many more types of businesses will have at least a plausible claim that their business activities should count as well – and that they should be granted their own exemptions from public-accommodation laws.
And anti-discrimination laws protect the rights of religious minorities too. An exemption allowing a business owner to refuse certain customers based on the doctrines of the owner’s religion could ultimately be applied against people of other faiths and belief systems. Laws that prohibit discrimination do not constrain religious freedom, they protect it. Carving out new exemptions to such laws would be a huge step backward in our nation’s long fight against invidious discrimination.